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ELRCPartially AllowedCause No 1135 of 2018· [2023] KEELRC 267 (KLR)

Osoro v General Industries Ltd (Cause 1135 of 2018) [2023] KEELRC 267 (KLR)

Employment and Labour Relations Court
2 February 2023
2,896 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that firing an employee for suing over a workplace injury is unfair, awarding twelve months' salary as compensation.

What this practically means

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Executive summary

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The Claimant, Jared Osoro, sued his former employer for unfair and unlawful termination, alleging his periodically renewed contract was terminated on July 2, 2017 without reason, notice of disciplinary process, or an opportunity to be heard. He sought declarations, twelve months' salary as compensation, unpaid leave, one month's pay in lieu of notice, severance pay, costs and interest. The Respondent contended it issued one month's termination notice taking effect on July 2, 2017, and that the relationship soured because the Claimant refused to withdraw a civil injury compensation suit despite an arranged insurance settlement. The court framed two issues: whether a valid reason existed for termination, and whether the Claimant was entitled to the reliefs sought. The termination letter gave as reason that the Claimant 'filled a case in bad faith' against the company. The court held, applying section 45 of the Employment Act and Walter Onuro Ogal v Teachers Service Commission, that the reason was invalid: the Claimant had waited two years for compensation, faced a three-year limitation period, and filing suit against an employer cannot be gross misconduct, being protected by the constitutional rights of access to justice and fair hearing (Articles 41, 48, 50). Procedural fairness under section 41 was also flouted as the Claimant was not given an opportunity to explain himself in the presence of a fellow worker or union representative; notice alone did not cure this, per Kenfreight E.A. Limited v Benson K. Nguti. The termination was declared unlawful, unfair and unprocedural. Compensation of twelve months' salary (Kshs 131,448) was awarded; unpaid leave, notice pay and severance were declined. Costs and interest were awarded to the Claimant.

Key legal issues

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01

Whether the Respondent had a valid reason for terminating the Claimant

Holding

The reason given - filing a compensation suit against the employer - was not a valid reason; section 45 of the Employment Act was breached and the Respondent failed in substantive justification.

Reasoning

The termination letter stated the Claimant was dismissed for filing a case against the company in bad faith. Section 45(1) and (2) of the Employment Act prohibits unfair termination and requires the employer to prove a valid and fair reason related to conduct, capacity, compatibility or operational requirements. The Claimant had waited two years for compensation before suing, and the three-year limitation period justified filing suit. No evidence showed payment was ever made. The court applied Walter Onuro Ogal v Teachers Service Commission on the dual fairness test.

p. 5
02

Whether the procedure for termination was fair under section 41 of the Employment Act

Holding

Procedural fairness was violated because the Claimant was not given an opportunity to explain himself before a fellow worker or union representative.

Reasoning

Section 41(1) requires an employer, before terminating on grounds of misconduct, poor performance or physical incapacity, to explain the reasons to the employee in a language he understands and allow another employee or shop floor union representative present. The Respondent merely issued a one-month termination notice with the reason stated therein; no hearing or explanation process was followed. The court relied on Kenfreight E.A. Limited v Benson K. Nguti for the requirement of explanation and hearing even where notice is given.

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Whether issuing notice dispenses with the requirement for a valid reason and hearing

Holding

No; even where notice is given, a valid reason must still be furnished and the employee heard.

Reasoning

The court characterized the termination as within the ambit of summary dismissal notwithstanding the one-month notice. Citing Kenfreight E.A. Limited v Benson K. Nguti, the court held that apart from issuing proper notice or payment in lieu, the employer is duty bound to explain the reasons for contemplated termination and hear the employee before deciding. Notice therefore does not cure absence of valid reason or procedural fairness.

p. 5

Legal principles established

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  • An employer must establish both a valid reason (substantive justification) and a fair procedure before terminating employment
  • Filing a suit against an employer is not gross misconduct justifying summary dismissal; an employee has a constitutional right of access to justice

Court orders

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  1. 1.Declaration that the Claimant's termination of employment was unlawful, unfair and unprocedural
  2. 2.Compensation for unlawful and unfair termination equivalent to 12 months' salary, Kshs 10,954 x 12 = Kshs 131,448/-
  3. 3.Prayer for unpaid leave declined
  4. 4.Prayer for one month's salary in lieu of notice declined as notice was given
  5. 5.Severance pay declined as the separation was not a redundancy
  6. 6.Costs awarded to the Claimant plus interest at court rates from the date of judgment until full payment
  7. 7.Final award of Kshs 131,448/-

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 41, 48, 50, 159(2)(d)
  • Employment Act, 2007Sections 41(1), 45(1), 45(2)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Gazette Notice No. 107Minimum wage

Cases cited (7)

  • H. Young (EA) Ltd versus Samuel Gikunda Mbiuki
    (2020)
  • Pius Machafu Isindu versus Lavington Security Guards Limited
    (2017) eKLR
  • Walter Anuro versus Teachers Service Commission
    (2013) eKLR
  • Independent Electoral and Boundaries Commission and Another versus Stephen Mutinda Mule and 3 others
    eKLR
  • Adetoun Oladeji (Nig) Ltd versus Nigeria Breweries Plc
    S.C 91/2002
  • Kenfreight E. A. Limited vs Benson K. Nguti
    (2016) eKLR Civil Appeal No 31 of 2015
  • Walter Onuro Ogal vs Teachers Service Commission
    2013 eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (implied by the court's constitutional references to Articles 41, 48, 50 and 159(2)(d)); Employment Act 2007

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Osoro v General Industries Ltd (Cause 1135 of 2018) [2023] KEELRC 267 (KLR)", Case Analysis (2023). Cause No 1135 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/267/eng@2023-02-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.